Gagging recipients of National Security Letters found unconstitutional

Ruling against key Patriot Act provision a setback for the FBI.

A California federal judge has struck down a key provision of the law governing National Security Letters (NSLs), controversial government subpoenas whose use was expanded by the Patriot Act. Under current law, the recipient of an NSL can be legally prohibited from disclosing not only the contents of the request but the fact that he received a request at all. That, ruled Judge Susan Illston on Thursday, was inconsistent with the First Amendment.

The ruling is a setback for the FBI, which issues tens of thousands of NSLs every year. Judge Illston has given the government 90 days to appeal before it takes effect.

Re-writing the law to save it

Judge Illston is not the first to consider the constitutionality of the gag orders that often accompany NSLs. In 2008, the United States Court of Appeals for the Second Circuit ruled that the NSL statute is unconstitutional as Congress had written it, but it allowed the provisions to stay in place if the government agreed to put in place additional free speech safeguards.

At the Second Circuit's prodding, the government has promised to notify NSL recipients that they had the option to challenge gag orders in court. The appeals court also modified the standards for reviewing the gag orders, making it easier for recipients to convince judges to lift them.

In effect, the Second Circuit re-wrote the law as Congress had written it and then ruled that this modified version of the law was constitutional. That approach didn't sit right with Judge Illston. While courts do sometimes re-interpret ambiguous laws to avoid constitutional problems, there was nothing vague about the NSL statute. In her view, if a statute is clearly unconstitutional, it's the job of Congress, not the courts, to re-write it.

Judge Illston was also troubled by the indiscriminate use of gag orders. The government's own figures suggest that 97 percent of NSLs come with disclosure restrictions. Moreover, these restrictions are not time-limited. Theoretically, they stay in place forever, and the law places the burden on recipients to go to court to get them lifted.

"This pervasive use of nondisclosure orders, coupled with the government's failure to demonstrate that a blanket prohibition on recipients' ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted," she wrote.

She was also concerned about a section of the statute that attempted to restrict the legal standards judges could apply in reviewing non-disclosure orders. The statute says that judges may only lift gag orders if there is "no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person." Judge Illston believed that this standard, which makes it easy for the court to suppress speech on flimsy evidence, conflicted with the courts' inherent right to review all legislation for compliance with the First Amendment and other provisions of the Constitution.

Unlike the Second Circuit, Judge Illston was not willing to re-write the law in order to save it. So she declared the entire national security letter statute unconstitutional.

Limited time offer

"However, given the significant constitutional and national security issues at stake," the judge wrote, her ruling won't take effect immediately. She's given the government 90 days to appeal it to the US Court of Appeals for the Ninth Circuit.

The Ninth Circuit is generally considered one of the more liberal courts in the country. If it upholds the decision, it could create a "circuit split," a conflict between two of the nation's appeals courts. That would make it more likely that the Supreme Court would step in to resolve the disagreement.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

This article only skims the surface of the total disregard these laws have for the US Constitution. The gag orders in place on many NSLs is a showcase of our government run amok in the name of national security. It is so far beyond any sense of constitutionality that it's staggering it's been allowed to go literally and figuratively "unchecked" for so long. And to top it all off, it's an international embarrassment to the values that the US likes to hold up to the rest of the world.

The "Patriot act" has always been anything BUT patriotic. It is time it was taken out but I am not holding my breath...

It's a fine, long-standing political tradition that whenever a law is given a name brand, that brand is at best unrelated and often diametrically opposed to the actual content and purpose of the law. In this case the latter, in the form of a brazen shredding and burning of the Constitution of the United States, and a shitting on the ashes. With bipartisan support, no less.

"The government's own figures suggest that 97 percent of NSLs come with disclosure restrictions. Moreover, these restrictions are not time-limited. Theoretically, they stay in place forever, and the law places the burden on recipients to go to court to get them lifted."

Irrelevant to this discussion.The DMCA is a completely different heinous law that has nothing at all to do with national security or this article or discussion.This is an article and discussion about specific provisions of the PATRIOT Act, which was an overbroad, overreaching piece of legislation hastened into effect after 9/11, when it was easy to scare people into thinking it was a good idea.

Note, legally, you are entitled to challenge whether this NSL is legally valid and binding.

However, should you choose to challenge it, you may find that your business as well as yourself and all your family members just happen to audited by the IRS for a number of years. Your last few returns may also be reviewed. Your car just might happen to be reported stolen every month.

It's always smacked of a kind of Neo-McCarthyism, which is what Dick Cheney, the real architect of this nonsense, was all about. Hopefully it'll be repealed. It's time for the US to begin it's return to being the free and open society that it should be.

The Patriot Act was always an outcome that represented exactly what the 911 terrorists were trying to achieve, to make the US paranoid and to restrict it's citizens' freedoms.

When one lives in a glass house it is best to avoid throwing partisan stones & one unconstitutional act tends to lead to others. Off topic or not it'd like to know what 9/11 level event was important enough to scare a democratic president & congress into passing the DMCA.

9/11 wasn't really that important in the grand scheme of things. It really got blown out of proportion.

On the other hand, the internet was not.

The DMCA is ultimately a response to the existance and widespread usage of the internet, and despite people's villification of it, a number of provisions located inside it were actually very GOOD provisions.

Safe harbor was a very good thing, and the establishment of safe harbor laws was a vital development as far as the internet was concerned. The whole backing up provisions were a good thing.

The only really questionable part had to do with DRM circumvention, though I don't think it is wrong to make DRM circumvention into a crime if done as a part of violating copyright law, much like how picking a lock on a door you own is perfectly legal, while picking a lock on someone else's door is not, with the net result of protecting walled gardens like Apple's iMarket, as well as messing with researchers. Well, I suppose not the ONLY bit; there are some other issues (like for instance the analog video thing, which was garbage).

DMCA takedown notices were a good idea, but unfortunately people are seldom prosecuted for their misuse, which is what needs to change.

I hope the traitors get locked away for attempting such treason on this country!

It's not treason if they're elected or on a federal paycheck. Everything they do is legal until a court points out the obvious illegality, at which point they mumble an objection before moving on to their next step in the war on terror/pirates/drugs. Seems we're happy enough for things to work this way.

I hope the traitors get locked away for attempting such treason on this country!

It's not treason if they're elected or on a federal paycheck. Everything they do is legal until a court points out the obvious illegality, at which point they mumble an objection before moving on to their next step in the war on terror/pirates/drugs. Seems we're happy enough for things to work this way.

I hope the traitors get locked away for attempting such treason on this country!

It's not treason if they're elected or on a federal paycheck. Everything they do is legal until a court points out the obvious illegality, at which point they mumble an objection before moving on to their next step in the war on terror/pirates/drugs. Seems we're happy enough for things to work this way.

With all due respect, yes, it is treason to intentionally violate the very Constitutional precepts that you are supposed to be upholding. No other way to put that.

I hope the traitors get locked away for attempting such treason on this country!

It's not treason if they're elected or on a federal paycheck. Everything they do is legal until a court points out the obvious illegality, at which point they mumble an objection before moving on to their next step in the war on terror/pirates/drugs. Seems we're happy enough for things to work this way.

With all due respect, yes, it is treason to intentionally violate the very Constitutional precepts that you are supposed to be upholding. No other way to put that.

I wish that were the case. There has been so much bullshit that a child could see is unconstitutional, at all levels of government. Not just the U.S. look at the the U.K. and Theresa May's desire to have pretty much all Internet activity monitored, with warrants only being required to view the actual content of messages. Without a warrant she wanted the police and a whole raft of governmental bodies to be able to see who we're talking to, when and where we were at the time (among other things). That seems so blatantly against even a vague understanding of how an ostensibly free society should operate. It seems to be forgotten that the purpose of government is to serve its electorate - not to persecute and control it for the sake of increasing its power.

Sometimes steps taken, or ideas proposed, are so egregious that they should result in a swift dismissal and/or criminal charges. This example of gagging is a pretty good example of a step that a child could see is both unconstitutional and unconscionable.

It's always smacked of a kind of Neo-McCarthyism, which is what Dick Cheney, the real architect of this nonsense, was all about. Hopefully it'll be repealed. It's time for the US to begin it's return to being the free and open society that it should be.

The Patriot Act was always an outcome that represented exactly what the 911 terrorists were trying to achieve, to make the US paranoid and to restrict it's citizens' freedoms.

It's going to end up at SCOTUS the same way Citizens United did.

Do you have any faith in our Supreme Court as a body that will do the right thing? I did once, but that, like the last shreds of my faith in the United States government, died in the GWB era (and as others have said, the Obama administration has done nothing to rectify the sins of the previous officeholders, making them no better). My cynicism says they'll uphold the NSL letters despite it being a mockery of the Constitution, because there is no branch of government that isn't a mockery itself at this point.

The only bipartisanship I see in today's three branches of US government occurs when they desire to take power and control from the hands of the American people.

Irrelevant to this discussion.The DMCA is a completely different heinous law that has nothing at all to do with national security or this article or discussion.This is an article and discussion about specific provisions of the PATRIOT Act, which was an overbroad, overreaching piece of legislation hastened into effect after 9/11, when it was easy to scare people into thinking it was a good idea.

When one lives in a glass house it is best to avoid throwing partisan stones & one unconstitutional act tends to lead to others. Off topic or not it'd like to know what 9/11 level event was important enough to scare a democratic president & congress into passing the DMCA.

You are apparently calendar challenged. The DMCA was signed in 1998 and 9/11 occurred in 2001.

It's always smacked of a kind of Neo-McCarthyism, which is what Dick Cheney, the real architect of this nonsense, was all about. Hopefully it'll be repealed. It's time for the US to begin it's return to being the free and open society that it should be.

The Patriot Act was always an outcome that represented exactly what the 911 terrorists were trying to achieve, to make the US paranoid and to restrict it's citizens' freedoms.

It's going to end up at SCOTUS the same way Citizens United did.

Do you have any faith in our Supreme Court as a body that will do the right thing? I did once, but that, like the last shreds of my faith in the United States government, died in the GWB era (and as others have said, the Obama administration has done nothing to rectify the sins of the previous officeholders, making them no better). My cynicism says they'll uphold the NSL letters despite it being a mockery of the Constitution, because there is no branch of government that isn't a mockery itself at this point.

The only bipartisanship I see in today's three branches of US government occurs when they desire to take power and control from the hands of the American people.

Citizens United was a good decision. People bitch about it because they don't understand the decision and/or are opposed to free speech. The campaign finance law was clearly and blatantly unconstitutional and the fact that anyone on the SC claimed that it was was clearly retarded nonsense and just shows how that many of the liberal justices on there don't care about the Constitution at all either, just their own personal agendas.

The entire point of the first amendment was to protect political speech, and a law which restricts political speech is clearly going to be a violation of the first amendment.

I wish that were the case. There has been so much bullshit that a child could see is unconstitutional, at all levels of government. Not just the U.S. look at the the U.K. and Theresa May's desire to have pretty much all Internet activity monitored, with warrants only being required to view the actual content of messages. Without a warrant she wanted the police and a whole raft of governmental bodies to be able to see who we're talking to, when and where we were at the time (among other things). That seems so blatantly against even a vague understanding of how an ostensibly free society should operate. It seems to be forgotten that the purpose of government is to serve its electorate - not to persecute and control it for the sake of increasing its power.

So long as the electorate demands not just reasonable best-effort but absolute security from the government, there will always be avenues for the government to steadily erode rights.

With all due respect, yes, it is treason to intentionally violate the very Constitutional precepts that you are supposed to be upholding. No other way to put that.

It amuses me that you say that it is treason when the Constitution itself explicitly defines what constitutes treason.

If you had actually read the Constitution you would know that violating the Constitution does not, in fact, constitute treason.

You really shouldn't complain about people violating the Constitution if you have never actually read it yourself.

U.S. enemies what to destroy our way of life and have us live by their mores. So how is congress gutting the Constitution not aiding them? It's a lot easier and cheaper to conquer a nation if they do half the work for you.

It's always smacked of a kind of Neo-McCarthyism, which is what Dick Cheney, the real architect of this nonsense, was all about. Hopefully it'll be repealed. It's time for the US to begin it's return to being the free and open society that it should be.

The Patriot Act was always an outcome that represented exactly what the 911 terrorists were trying to achieve, to make the US paranoid and to restrict it's citizens' freedoms.

Sadly, I wouldn't hold my breath for any positive outcome from SCOTUS. Scalia runs it. And he is basically Cheney in a robe. They have consistently shown a disregard for rights and freedoms in the name of security.

It's always smacked of a kind of Neo-McCarthyism, which is what Dick Cheney, the real architect of this nonsense, was all about. Hopefully it'll be repealed. It's time for the US to begin it's return to being the free and open society that it should be.

The Patriot Act was always an outcome that represented exactly what the 911 terrorists were trying to achieve, to make the US paranoid and to restrict it's citizens' freedoms.

It's going to end up at SCOTUS the same way Citizens United did.

Do you have any faith in our Supreme Court as a body that will do the right thing? I did once, but that, like the last shreds of my faith in the United States government, died in the GWB era (and as others have said, the Obama administration has done nothing to rectify the sins of the previous officeholders, making them no better). My cynicism says they'll uphold the NSL letters despite it being a mockery of the Constitution, because there is no branch of government that isn't a mockery itself at this point.

The only bipartisanship I see in today's three branches of US government occurs when they desire to take power and control from the hands of the American people.

Citizens United was a good decision. People bitch about it because they don't understand the decision and/or are opposed to free speech. The campaign finance law was clearly and blatantly unconstitutional and the fact that anyone on the SC claimed that it was was clearly retarded nonsense and just shows how that many of the liberal justices on there don't care about the Constitution at all either, just their own personal agendas.

The entire point of the first amendment was to protect political speech, and a law which restricts political speech is clearly going to be a violation of the first amendment.

The thing is you are overlooking the fact that corporations are now considered human beings legally.

While on one level that might make sense, especially due to legal liability, it completely fails to address the simple fact that corporations have no conscience or scruples as compared to a human. The only motivation for a corporation is profit growth. And the only moral compass a corporation has is the law. And as everyone knows, now that we have Citizens United, corporations are free to throw as much money as they want to change the law.

It's similar to a mentally unstable person going to a psychologist and paying more and more money until psychologist tells him/her its totally ok to do whatever he/she wants to do.